********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. 99090433
)
CBS Radio License, Inc. ) NAL/Acct. No.
2001320800008
) Facility ID #18527
Licensee of Station WLLD(FM), ) JWS
Holmes Beach, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 1, 2000 Released: December
5, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that CBS Radio License, Inc. (``CBS''),
licensee of Station WLLD(FM), Holmes Beach, Florida, has
apparently violated 18 U.S.C. § 1464 and section 73.3999 of
the Commission's rules, 47 C.F.R. § 73.3999, by willfully
broadcasting indecent language. Based on our review of the
facts and circumstances in this case, we conclude that CBS
is apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000).
II. BACKGROUND
2. The Commission received a complaint concerning a
September 11, 1999, broadcast on WLLD(FM), called ``The Last
Damn Show,'' which aired between 6 p.m. to 11 p.m. that
night. The complaint included a tape recording of the
entire show as well as a transcript and related tape of
those portions of the broadcast the complainant found most
offensive. The transcript contained ten discrete segments,
all of which allegedly aired before 10 p.m. After reviewing
the transcript and tape, we issued a letter of inquiry to
the licensee.
3. In its response, CBS describes the ``The Last Damn
Show'' as a local concert organized by the station, which
featured rap and hip hop music performed by award winning
artists. CBS acknowledges airing the performance and
further acknowledges that performers sometimes used certain
expletives. Nevertheless, CBS contends that the complaint
should be dismissed because it believes the tapes supplied
by the complainant are confusing, imprecise as to time and
significantly edited. In this regard, CBS submits that
edits are audible and that lines of otherwise unrelated
material were spliced together in order to create the
impression of extended bursts of profanity. Consequently,
according to CBS, the transcript may not accurately
represent the context in which the words and lyrics appeared
in relation to the concert as a whole. In any event, CBS
notes that the segments transcribed represent only nine
minutes from a five-hour show.
4. With respect to the particular segments, CBS offers
various corrections (which we have accepted) and submits
that the final three segments of the transcript aired after
10 p.m. As for the remaining material, CBS contends it
contains no indecent speech. In this regard, CBS argues
that current community standards find acceptable material
that regularly addresses sexual topics and that current
prime time shows use graphic language and show graphic
sexual scenes in programs directed at youthful audiences.
In CBS' view, the public's acceptance of such material as
well as the airplay given to popular songs that contain
sexual themes or expletives demonstrate that contemporary
community standards have evolved to the point where the
transcribed material should not be found indecent. In this
regard, CBS submits that the artists' ``rampant'' popularity
coupled with the praise coming from listeners and the
absence of complaints following the broadcast are further
indications that their lyrics are in step with contemporary
community standards. Finally, CBS argues that the context
of the material - live, spontaneous and unscripted
performances by persons not under control of the station,
which contained occasional expletives and which was mixed
with commercials, interviews, recorded music and announcer
``patter'' - warrants a conclusion that the material was not
indecent. In this regard, CBS asserts that WLLD(FM)'s
broadcast of various expletives was not intended to be
gratuitous, pandering or titillating and that, in any event,
the expletives were not used to convey a sexual or excretory
meaning.
III. DISCUSSION
5. Section 503(b)(1) of the Communications Act (the
``Act'') provides in pertinent part:
Any person who is determined by the Commission, in
accordance with paragraph (3) or (4) of this
subsection to have ---
...
(D) violated any provision of section 1304, 1343,
or 1464 of title 18, United States Code;
shall be liable to the United States for a
forfeiture penalty.
18 U.S.C. § 1464 provides criminal penalties for anyone who
``utters any obscene, indecent or profane language by means
of radio communication.'' As explained below, we believe
that portions of the ``The Last Damn Show'' were indecent
and that the licensee's broadcast of that language was
willful.
6. The Commission has defined indecent speech as
language that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory
activities or organs. Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (citing Pacifica Foundation, 56 FCC 2d 94, 98
(1975), aff'd sub nom. FCC v. Pacifica Foundation, 438 U.S.
726 (1978). The Commission's authority to restrict the
broadcast of indecent material extends to times when there
is a reasonable risk that children may be in the audience.
Action for Children's Television v. FCC, 852 F.2d 1332 (D.C.
Cir. 1988). Current law holds that such times begin at 6
a.m. and conclude at 10 p.m. Action for Children's
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert.
denied, 116 S.Ct. 701 (1996). Thus, to be actionably
indecent, the material in question must not only meet the
standard referenced above but also air after 6 a.m. and
before 10 p.m. See 47 C.F.R. § 73.3999.
7. After carefully considering the record before us,
it appears that CBS willfully violated our indecency rule
with respect to the language appearing herein. CBS
acknowledges that it broadcast the language in question
before 10 p.m. The language contains patently offensive
references to oral sex as well as sexual intercourse.
Illustrative segments of the transcript are attached. The
Commission previously has found similar material that
contains unmistakable patently offensive references to
sexual activities to be indecent,1 and we see no basis for
finding otherwise in this case. In this regard, we disagree
with CBS that the cited material or anything like it has
ever been found acceptable under contemporary community
standards for the broadcast medium.
8. As for the context of the material, we recognize
that the cited language occurred in connection with a live
performance of rap and hip hop artists. However, we see no
reason to excuse CBS in this case. If anything, considering
CBS' apparent awareness of the lyrics normally appearing in
the artists' material (see CBS' Response at p. 12), CBS
should have taken precautions to avoid airing such indecent
utterances. Apparently, it chose not to do so. Cf. Regent
Licensee of Flagstaff, Inc. (KZGL(FM)), DA 00-2041 (Enf.
Bureau, released September 7, 2000) (An interview with an
adult movie actress at an adult video store could reasonably
give rise to indecent speech, and a licensee's failure to
take precautionary measures is no bar to finding that the
broadcast of indecent speech was willful). Moreover, we
reject CBS' argument regarding the popularity of the
artists. Neither the statute nor our case law confers upon
a broadcaster the right to air indecent language simply
because the speaker happens to be popular. See The Rusk
Corporation (KLOL(FM)), 8 FCC Rcd 3228, 3229 (1993).
9. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
section 1.80 of the Commission's rules, 47 C.F.R. § 1.80,
both state that any person who willfully or repeatedly fails
to comply with the Act or the Commission's rules shall be
liable for a forfeiture penalty. For purposes of section
503(b) of the Act, the term ``willful'' means that the
violator knew that it was taking the action in question,
irrespective of any intent to violate the Commission's
rules.2 As explained above, CBS knew that it was
broadcasting ``The Last Damn Show'' and each of the cited
segments. In assessing a forfeiture, we take into account
the statutory factors set forth in section 503(b)(2)(D) of
the Act. Those factors include the nature, circumstances,
extent and gravity of the violation, and, with respect to
the violator, the degree of culpability, any history of
prior offenses, ability to pay, and such other matters as
justice may require.3
10. The Commission's Forfeiture Guidelines set a base
forfeiture amount of $7,000 for transmission of
indecent/obscene materials.4 After considering all the
facts and circumstances, we believe the base forfeiture
amount is the appropriate sanction and that neither an
upward nor downward adjustment should be made.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to
section 503(b) of the Act,5 and sections 0.111, 0.311 and
1.80 of the Commission's rules,6 CBS Radio License, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of seven thousand dollars ($7,000) for
willfully violating the 18 U.S.C. § 1464 and section 73.3999
of the Commission's rules.
12. IT IS FURTHER ORDERED THAT, pursuant to section
1.80 of the Commission's rules,7 within thirty days of this
NOTICE OF APPARENT LIABILITY, CBS Radio License, Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE
a written statement seeking reduction or cancellation of the
proposed forfeiture.
13. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. referenced above.
14. The response, if any, must be mailed to the
Charles W. Kelley, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Room 3-B443, Washington,
D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced
above.
15. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
respondent's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
16. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Credit and Debt Management Center,
445 12th Street, S.W., Washington, D.C. 20554.8
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail Return
Receipt Requested to CBS Radio License, Inc., 10220 River
Road, Suite 305, Potomac, Maryland 20854, attention: Stephen
A. Hildebrandt, Vice President; to H. Anthony Lehv, Leventhal, Senter &
Lerman, P.L.L.C., 2000 K Street, N.W., Suite 600,
Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT
Radio Station: WLLD(FM), Holmes Beach, Florida
Date/Time Broadcast: September 11, 1999, between 6 p.m.
and 10 p.m.
Material Broadcast: ``The Last Damn Show'' (Rap lyrics and
comments before a large crowd)
FV: Female Voice
MV: Male Voice
FV: (Rap lyrics) You know you mother fuckers can't beat.
(Unintelligible) You mother fuckers can't beat.
(Unintelligible) You mother fuckers can't read me.
(Unintelligible) You mother fuckers, you keep
(Unintelligible) Fuck your family. (Unintelligible) You
take your shit, you take your shit. (Unintelligible) I'm a
superior bitch, a serious bitch. (Unintelligible) A
serious bitch. (Unintelligible) I won't take that shit.
(Unintelligible) Niggers and your mother fucking wide
mouth. (Unintelligible) Damn that bitch can pump with it.
You want to bang, nigger. You want to bang, nigger. You're
off the chain, nigger. We running game, nigger. You want
to bang, nigger. It ain't no thing, nigger. We off the
chain, nigger. (Unintelligible)
MV: We ain't going to have no more feedback problem. Fuck
it. We're going to go all the way back where you all feel
(Unintelligible) mother fucking noise. (Unintelligible)
God damn, where are my pussy eating niggers? Any my niggers
into eating pussy? Y'all make some noise. Hey, where are
the girls? If you're eating pussy, where you at? That's
it. Oh, they all like it. I ain't eating no pussy tonight.
If you all don't like it, fuck it. I ain't going to beg
you. You like it? [Edit] And my dog don't give a fuck and
we'll fuck you sucking up coke, you know. Trying to explain
this shit away, niggers. I don't think y'll heard me. I
got MTV Best New Artist Slim Shady backstage. Slim mother
fucking Shady backstage. Make some noise.
_________________________
1 See, e.g., WQAM License Limited Partnership, 15 FCC Rcd
2518, recon. denied, 15 FCC Rcd 15349 (2000).
2 See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern
California Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 47 U.S.C. § 503(b)(2)(D). See also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17100-01 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Guidelines'').
4 Forfeiture Guidelines, supra note 3, 12 FCC Rcd at 17113.
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 47 C.F.R. § 1.80.
8 See 47 C.F.R. § 1.1914.